Land and Environment Court of New South Wales CITATION : Zimmerman v Wollondilly Shire Council [2004] NSWLEC 576 APPLICANT Ron S Zimmerman PARTIES : RESPONDENT Wollondilly Shire Council FILE NUMBER(S) : 10763 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Subdivision of land Environmental Planning and Assessment Act LEGISLATION CITED: State Environmental Planning Policy No. 1 Wollondilly Local Environmental Plan 1991 CASES CITED: Winton v North Sydney Council; Golden v The Minister for Transport DATES OF HEARING: 13/09/2004 EX TEMPORE 09/13/2004 JUDGMENT DATE : APPLICANT Mr R Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 13 September 2004 10763 of 2004 Ron S Zimmerman -v- Wollondilly Shire Council JUDGMENT 1 This is a verbal judgment for an on-site hearing of an appeal under s. 97 of the Environmental Planning and Assessment Act against the council's refusal of the development application to subdivide the land is known as 195 East Parade, Buxton Village. The land is currently a 1.878 ha parcel and it is proposed that there be two lots created with a battleaxe serving the rear lot, rather a right of way contained within the area of the rear allotment. Both lots would then have an area of approximately 0.93 ha per lot. 2 This is a case where applicants come to the Court with a proposal which they consider would make no difference in terms of the overall general area if there was an additional parcel of land and an additional dwelling. The Court has gone to great lengths today to understand and explain the intent of the planning instruments. For this particular application a 40 ha minimum subdivision size exists as the area is zoned 1(a1) under the Wollondilly Local Environmental Plan 1991. It is noted that there are two other rural agricultural zones, that require 16 ha minimum and the other a 100 ha minimum. 3 The land to the south of the subject site is within an area that requires the amalgamation of lots in order to achieve a 4000 m sq. parcel that would allow a dwelling house. It is noted that there are a number of paper subdivisions in this particular area and council has brought in a provision to ensure that dwellings are not erected on each allotment of land. It is also noted in the area to the north there is one parcel that contains a primary school and there have been some seven dwellings erected to the rear of the school on parcels of approximately 1 ha each. 4 In the old orchard area there are other parcels below the minimum size. However, this subdivision was created in December 1985 with allotments of approximately 2 ha each. 5 To the north of the subject lot there are three similar size lots, ranging from 1.6 ha approximately. The applicant is desirous of subdividing the subject land and he maintains that it is no longer used for agricultural purposes. An aim of the plan or objective of the zone is to maintain agricultural holdings. 6 The State Environmental Planning Policy No. 1 objection to vary the minimum allotment size from 40 ha to approximately 0.93 ha per lot is a threshold question. In other words it is a question that must be answered prior to looking at the merits of the application. State Environmental Planning Policy No. 1 is a policy that allows for flexibility in the application of development standards. Mr Seton has taken me to the judgment of Winton v North Sydney. This is a judgment of his Honour Lloyd J, where a number of steps are set out in terms as to how one must look at a SEPP 1 objection. Firstly it is agreed that the 40 ha minimum is a development standard, one must then look at what the underlying objectives or purposes of that development standard are and these do not necessarily equate to the objectives of the zone although at times the objectives of the zone may provide some guidance as to the purpose of the minimum allotment size. 7 There was a slight difference of opinion as to what the underlying objectives are for the 40 ha standard. Mr Smith is of the opinion that the standard is there to ensure that there is not subdivision that would create agricultural holdings smaller than those of a viable economic nature. In his opinion it is also: the character of the area in terms of the rural character of the area, agricultural character of the area, that is sought to be maintained by the minimum; as well as ensuring that there is not premature subdivision or ad hoc subdivisions in terms of the overall future development or economic development of the land. Mr Boers addressed the purpose of the standard in terms of the objectives of the zone. 8 At this point it is probably relevant to point out that the objectives of the zone are to: a. protect the agricultural potential and prevent fragmentation. b. To prevent inappropriate premature and parotic subdivisions and to enhance the prospect of economic provision of services. c. To prevent on the fringe areas subdivision of land to small lots which would prejudice the proper and orderly development of additional urban areas as a result; d. To retain the scenic quality and overall character; and e. To encourage agricultural activities. 9 It is noted, and I accept the applicant's submission, that the land has not been used for an agricultural purpose for many years, however, further fragmentation and further subdivision of the land certainly would not allow for the maintenance of any agricultural activities for the subject site. 10 In my assessment of the threshold question, I agree with the council's expert that the SEPP 1 objection lodged is not well founded in that, in Mr Smith's analysis, the purpose or underlying objectives of the standard are not complied with or satisfied. Furthermore, the objects of the Act as set out s 5 of the EP&A Act are also not satisfied in my assessment of the application in terms of orderly and economic development. Therefore the SEPP 1 objection in my opinion should not be allowed. 11 I also note the council has consistently not allowed SEPP 1 variations to the minimum allotment size and consistency of decision making is important in terms of the way the Court looks at a matter. 12 While it is not necessary to further assess the merits because the SEPP 1 objection is not allowed I will do so. The issues for the SEPP1 assessment and the merits assessment in many respects overlap or coincide. In a merits assessment of the zone objectives some are of more relevance to this parcel of land than others. For example, agricultural viability is probably not pre-eminent in this particular situation but nonetheless the fragmentation of this holding would not satisfy this objective of the zone. 13 More particularly there are specific objectives which relate to the prevention of fringe urban areas, subdivision into smaller lots which would prejudice the proper layout of additional urban areas as a result of natural growth and it is this objective which is not satisfied as well as to prevent inappropriate premature sporadic subdivisions that is also not satisfied by the proposal in my assessment. 14 Therefore the application should not only be disallowed under SEPP 1 but also in terms of council's Local Environmental Plan cl 10(3), as the proposal does not satisfy the zone objectives rather the proposal is (what we often refer to as) antipathetic which means it is contrary and inconsistent to the zone objectives. 15 In terms of the issue of precedent, this is important in terms of looking at the merits of the application and Mr Seton has taken the Court to the case (that should be made available to the applicant) Golden v The Minister for Transport. In this case his Honour Justice Lloyd looked at all of the case law in terms of precedent. Precedent as an issue includes where an application may not necessarily be objectionable in itself but one must have regard to the cumulative impact. For it is only human nature that where an adjoining land owner sees the subdivision of a similar property he or she will consider they should also be allowed to subdivide their parcel of land. This would not only occur once, but repeatedly over time leading to incremental and cumulative subdivision of land holdings in the area. 16 Therefore in terms of precedent whilst there may be no environmental harm in terms of what we have seen here today but if this one individual subdivision was to be allowed it would over time, because of the precedent effect, lead to further subdivisions and environmental harm. And clearly the land is within the Hawkesbury/Nepean Catchment Area and as such the provisions of the Regional Environmental Plan apply where the aim is to protect the environment by ensuring that the impact of future land uses are considered in a regional context and in terms of the cumulative impact. In this regard the subject subdivision should also not be allowed. 17 On the issue of the points that the applicant has raised I note that the school is within an area surrounded by non-urban urban land. While the Court does not have a crystal ball, and there should be no inference taken from this, but in the future, whether that be 5, 10, 15, 20 years down the track, there may be a need to expand the village area zoning for residential purposes and therefore there may be a re-zoning of lands that adjoin the existing village area. However, allowing ad hoc subdivision would hinder future planned orderly and economic development. 18 As Mr Seton said a purpose of the SEPP 1 assessment is to ensure that land is not prematurely subdivided to circumvent the rezoning process contemplated in the Environmental Planning and Assessment Act. This is a separate division of the Act that provides for environmental studies and co-ordinated infrastructure provision that would allow for the economic and orderly development and expansion of the village. The expansion of the village by the subdivision of this land should be looked at in a more holistic context of the future needs of the village and that would also have regard to servicing such as sewerage and water facilities. 19 In my assessment, the scenic value is not determinative. Clearly the land does contribute to an agricultural character, and the addition of one dwelling may not significantly impact in these terms. But clearly there are other objectives of the zone that are not satisfied by the proposed development and for these reasons the application is refused. 20 I can understand the applicant's position in thinking that an additional dwelling will not make any difference in an area that is adjacent to a zone that allows smaller allotments. However, from a planning point of view that is not the way in which I am directed to assess this application, I must have regard to the zone and controls as a focal point in my assessment and that starts with the zoning and the 40 ha minimum. 21 In conclusion the SEPP 1 objection is not well founded and therefore the appeal fails. Also on a further assessment of the merits the development is one that the Court would not approve having regard to the need for consistency in decision making and the implementation of council's planning controls. The evidence here today is that they have been consistently applied and I must assess the application in the context of the Regional Plan of council's controls its Development Control Plan. 22 Therefore on the basis of my assessment above the orders of the Court are: 1. The appeal in respect of the property known as 195 East Parade, Buxton Village, is dismissed. 2. The State Environmental Planning Policy No. 1 objection submitted to vary of the minimum allotment size of 40 ha is not allowed. 3. The Development Application to subdivide the subject land into two allotments of approximately 0.93 ha each is determined by the refusal of consent. 4. The exhibits are returned. __________________ J S Murrell Commissioner of the Court Ltr/rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.